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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 13E-3
RULE 13E-3 TRANSACTION STATEMENT
(PURSUANT TO SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934)
Amendment No. 6
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Imperial Credit Commercial Mortgage Investment Corp.
(Name of Issuer)
Imperial Credit Industries Inc.
Imperial Credit Commercial Mortgage Investment Corp.
ICCMIC Acquisition Corp.
(Name of Person(s) Filing Statement)
Common Stock, par value $0.0001 per share
(Title of Class of Securities)
45272T 10 2
(CUSIP Number of Class of Securities)
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Irwin L. Gubman, Esq. Norbert M. Seifert, Esq.
General Counsel General Counsel
Imperial Credit Industries, Inc. Imperial Credit Commercial Mortgage
23550 Hawthorne Blvd. Investment Corp.
Bldg. #1, Suite 240 11601 Wilshire Blvd, Suite 2080
Torrance, CA 90505 Los Angeles, CA 90025
(310) 791-8040 (310) 231-1280
(Name and Telephone Number of Person Authorized to Receive Notices and
Communications on Behalf of the Person(s) Filing Statement)
Copies to:
James R. Walther, Esq. Andrew L. Weil, Esq.
Mayer, Brown & Platt Sonnenschein Nath & Rosenthal
350 S. Grand Ave., 25th Floor 8000 Sears Tower
Los Angeles, CA 90071 Chicago, IL 60606
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This statement is filed in connection with (check the appropriate box):
a. [X] The filing of solicitation materials or an information statement
subject to Regulation 14A, Regulation 14C, or Rule 13e-3(c) under the
Securities Exchange Act of 1934.
b. [_] The filing of a registration statement under the Securities Act of
1933.
c. [_] A tender offer.
d. [_] None of the above.
Check the following box if the soliciting materials or information statement
referred to in checking box (a) are preliminary copies. [X]
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CALCULATION OF FILING FEE
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<CAPTION>
Transaction Valuation* Amount of Filing Fee
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<S> <C>
$302,730,160 $60,547
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</TABLE>
* Pursuant to, and as provided by, Rule 0-11(b)(1), the amount required to be
paid with the filing of this Schedule 13E-3 is $60,547. This amount is based
upon $11.5753246 (price per share being paid for outstanding shares pursuant
to the merger), $1.10 (price per share being paid for 815,500 outstanding
stock options with an exercise price of $15.00 per share) and $2.71 (price
per share being paid for 621,750 outstanding stock options with an exercise
price of $9.00 per share).
[X]Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the form
or schedule and the date of its filing.
Amount previously paid: $60,547 Filing party: Imperial Credit Commercial
Mortgage Investment Corp.
Form or registration no.: Preliminary Date Filed: January 19, 2000
Schedule 14A
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This Amendment No. 6 amends and restates the Rule 13e-3 Transaction
Statement on Schedule 13E-3 (the "Statement"), dated October 21, 1999, as
amended by Amendment No. 1 thereto, dated December 22, 1999, Amendment No. 2
thereto, dated January 18, 2000, Amendment No. 3 thereto, dated February 7,
2000, Amendment No. 4 thereto, dated February 14, 2000 and Amendment No. 5
thereto, dated February 18, 2000 filed in connection with the merger (the
"Merger") of ICCMIC Acquisition Corp. ("Merger Sub"), a Maryland corporation,
with and into Imperial Credit Commercial Mortgage Investment Corp., a Maryland
corporation ("ICCMIC" or the "Company"), pursuant to a Merger Agreement (the
"Merger Agreement") dated July 22, 1999, as amended October 29, 1999 and
February 7, 2000 by and among Merger Sub, the Company and Imperial Credit
Industries, Inc., a California corporation ("Imperial Credit").
Item 11. Contracts, Arrangements or Understandings With Respect to the Issuer's
Securities
At a special meeting of shareholders of the Company held on March 20, 2000,
the shareholders of the Company approved the merger of Merger Sub with and into
the Company in accordance with the Merger Agreement. The Merger became
effective on March 28, 2000 upon the filing of Articles of Merger with the
Maryland Department of Assessments and Taxation. As a result of the Merger, the
former shareholders of the Company are entitled to receive $11.5753246 per
share in cash.
Item 17. Material to be Filed as Exhibits
(a) Not Applicable.
(b) Not Applicable.
(c) Articles of Merger filed with the Maryland Department of Assessments and
Taxation.*
(d) Press Release issued by the Company and Imperial Credit regarding
completion of the Merger, dated March 28, 2000.
(e) Not Applicable.
(f) Not Applicable.
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* Exhibit A thereto previously filed is Exhibit (c) to the Rule 13c-3
Transaction Statement on Schedule 13E-3 filed by Imperial Credit, Merger Sub
and the Company with the Securities and Exchange Commission on February 18,
2000.
1
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
Dated: March 28, 2000.
IMPERIAL CREDIT INDUSTRIES, INC.,
a California corporation
/s/ Irwin L. Gubman
By: _________________________________
Irwin L. Gubman
General Counsel and Secretary
ICCMIC ACQUISITION CORP.,
a Maryland corporation
/s/ Irwin L. Gubman
By: _________________________________
Irwin L. Gubman
Secretary
2
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
Dated: March 28, 2000.
IMPERIAL CREDIT COMMERCIAL
MORTGAGE INVESTMENT CORP.,
a Maryland corporation
/s/ Irwin L. Gubman
By: _________________________________
Irwin L. Gubman
Secretary
3
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INDEX TO EXHIBITS
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<CAPTION>
Sequentially
Exhibit Numbered
Number Description Page
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<C> <S> <C>
(a) Not Applicable.
(b) Not Applicable.
(c) Articles of Merger filed with the Maryland Department
of Assessments and Taxation.*
(d) Press Release issued by the Company and Imperial Credit
regarding completion of the Merger, dated March 28,
2000.
(e) Not Applicable.
(f) Not Applicable.
</TABLE>
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* Exhibit A thereto previously filed as Exhibit (c) to the Rule 13e-3
Transaction Statement on Schedule 13E-3 filed by Imperial Credit, Merger Sub
and the Company with the Securities and Exchange Commission on February 18,
2000.
4
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EXHIBIT 99.(c)
ARTICLES OF MERGER
between
IMPERIAL CREDIT COMMERCIAL MORTGAGE INVESTMENT CORP.
(a Maryland corporation)
and
ICCMIC ACQUISITION CORP.
(a Maryland corporation)
Imperial Credit Commercial Mortgage Investment Corp., a corporation duly
organized and existing under the laws of the State of Maryland ("ICCMIC"), and
ICCMIC Acquisition Corp., a corporation duly organized and existing under the
laws of the State of Maryland ("IAC"), do hereby certify that:
FIRST: ICCMIC and IAC have agreed to merge.
SECOND: "Imperial Credit Commercial Mortgage Investment Corp." and "ICCMIC
Acquisition Corp." are the names of the two parties to these Articles. Each of
ICCMIC and IAC is a Maryland corporation. ICCMIC shall survive the merger as
the surviving corporation and shall continue under the name "Imperial Credit
Commercial Mortgage Investment Corp." as a Maryland corporation.
THIRD: ICCMIC has its principal office in the State of Maryland in
Baltimore City. IAC has its principal office in the State of Maryland in
Baltimore City and does not own an interest in land in the State of Maryland.
FOURTH: The terms and conditions of the merger set forth in these Articles
were advised, authorized, and approved by each party to these Articles in the
manner and by the vote required by its charter and by the laws of the State of
Maryland. The manner of approval was as follows:
(a) The ICCMIC board of directors, at a meeting held on July 22, 1999,
adopted resolutions declaring the merger advisable and fair to and in
the best interests of ICCMIC and its stockholders, adopted and
approved the merger agreement, dated as of July 22, 1999 (and as
amended on October 22, 1999 and on February 7, 2000) by and among
Imperial Credit Industries, Inc., a California corporation ("ICII"),
IAC and ICCMIC, attached as Exhibit A hereto (the "Merger Agreement"),
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and the merger, and directed that the Merger Agreement and the merger
be submitted to the stockholders of ICCMIC for approval at an annual
or special meeting of ICCMIC stockholders. At a special meeting of
ICCMIC
<PAGE>
stockholders held on March 20, 2000, ICCMIC stockholders approved and
adopted the Merger Agreement and the merger by the votes required
under the Merger Agreement.
(b) The IAC board of directors, by unanimous written consent dated March
15, 2000, adopted resolutions declaring the merger to be advisable and
in IAC's best interests and ratifying the Merger Agreement. By
written consent dated March 15, 2000, ICII, as the sole stockholder of
IAC, waived notice of a meeting of stockholders and approved the
merger.
FIFTH: As part of the merger, the charter of ICCMIC is amended in its
entirety so as to conform with Articles I through VIII of the charter of IAC,
attached as Exhibit B hereto. The merger does not reclassify or change the
---------
terms of any class or series of capital stock of ICCMIC.
SIXTH: The total number of shares of capital stock of all classes that
each of ICCMIC and IAC has authority to issue, the number of authorized shares
of each such class and the par value of the shares of each such class are as
follows:
(a) The total number of shares of capital stock of all classes that ICCMIC
has authority to issue is 500 million, 3.5 million of which are shares
of Series A Junior Participating Preferred Stock, par value $0.0001
per share, and 496.5 million of which are shares of Common Stock, par
value $0.0001 per share. The aggregate par value of all the shares of
capital stock of all classes that ICCMIC has authority to issue is
$50,000.
(b) The total number of shares of capital stock of all classes that IAC
has authority to issue is 500 million, par value $0.0001 per share.
IAC has authority to issue two classes of shares, designated Common
Stock and Series A Nonvoting Preferred Stock, respectively. The total
number of shares of Common Stock that IAC has authority to issue is
499,999,900 million. The total number of shares of Series A Nonvoting
Preferred Stock the corporation has authority to issue is 100. The
aggregate par value of all shares of capital stock of all classes that
IAC has authority to issue is $50,000.
SEVENTH: The merger changes the authorized capital stock of ICCMIC.
Immediately before the merger, ICCMIC has authority to issue 3.5 million shares
of Series A Junior Participating Preferred Stock, par value $0.0001 per share,
and 496.5 million shares of Common Stock, par value $.0001 per share. Following
the merger, ICCMIC will have authority to issue 499,999,900 million shares of
Common Stock, par value $0.0001 per share and 100 shares of Series A Nonvoting
Preferred Stock, par value $0.0001 per share.
EIGHTH: At the effective time of the merger and without further act, each
issued and outstanding share of ICCMIC common stock shall be canceled and
retired, shall cease to exist
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and shall be converted into the right to receive $11.5753246 in cash from ICII
(the "merger consideration"). Following the effective time of the merger,
holders of shares of ICCMIC common stock shall cease to have any rights with
respect to such shares other than the right to receive the merger consideration.
There are no shares of ICCMIC's Series A Junior Participating Preferred Stock
outstanding.
At the effective time of the merger and without further act, each issued
and outstanding share of IAC common stock shall be converted into a share of
common stock of the surviving corporation and each issued and outstanding share
of IAC Preferred Stock shall be converted into a share of preferred stock of the
surviving corporation.
NINTH: Other provisions necessary to effect the merger are as follows:
(a) Subject to the provisions of the Maryland General Corporation Law, at
the effective time of the merger, all the properties, rights,
privileges, powers and franchises, of a public or private nature, of
ICCMIC and IAC shall vest in the surviving corporation, and all debts,
liabilities and duties of ICCMIC and IAC shall become the debts,
liabilities and duties of the surviving corporation.
(b) The directors of IAC immediately before the effective time of the
merger shall be the initial directors of the surviving corporation
following the merger, each to hold office until the earlier of such
person's resignation or removal or until a successor is duly elected
and qualified, as the case may be.
(c) The officers of IAC immediately before the effective time of the
merger shall be the initial officers of the surviving corporation
following the merger, each to hold office until the earlier of such
person's resignation or removal or until a successor is duly elected
and qualified, as the case may be.
(d) The bylaws of IAC, as in effect immediately before the effective time
of the merger, shall be the bylaws of the surviving corporation until
thereafter changed or amended as provided therein or by applicable
law.
TENTH: The merger shall become effective at such time as these Articles
are accepted for record by the State Department of Assessments and Taxation of
Maryland.
* * * * *
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IN WITNESS WHEREOF, Imperial Credit Commercial Mortgage Investment Corp.
and ICCMIC Acquisition Corp. have caused these presents to be signed in their
respective names and on their respective behalves by their respective presidents
and witnessed by their respective secretaries on March 28, 2000.
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<CAPTION>
IMPERIAL CREDIT COMMERCIAL
WITNESS: MORTGAGE INVESTMENT CORP.
<S> <C>
/s/ Norbert M. Seifert By: /s/ Mark S. Karlan
___________________________________________ ____________________________________
Norbert M. Seifert, General Counsel, Senior Mark S. Karlan, President and Chief
Vice President and Secretary Executive Officer
WITNESS: ICCMIC ACQUISITION CORP.
/s/ Irwin L. Gubman By: /s/ H. Wayne Snavely
___________________________________________ _____________________________________
Irwin L. Gubman, Secretary H. Wayne Snavely, President
</TABLE>
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THE UNDERSIGNED, the President and Chief Executive Officer of Imperial
Credit Commercial Mortgage Investment Corp., who executed on behalf of such
corporation the foregoing Articles of Merger of which this certificate is made a
part, hereby acknowledges in the name and on behalf of such corporation the
foregoing Articles of Merger to be the corporate act of such corporation, and
hereby certifies that, to the best of his knowledge, information and belief, the
matters and facts set forth therein with respect to the authorization and
approval thereof are true in all material respects under the penalties of
perjury.
/s/ Mark S. Karlan
_______________________________________________
Mark S. Karlan, President and Chief Executive
Officer
THE UNDERSIGNED, the President of ICCMIC Acquisition Corp., who executed
on behalf of such corporation the foregoing Articles of Merger of which this
certificate is made a part, hereby acknowledges in the name and on behalf of
such corporation the foregoing Articles of Merger to be the corporate act of
such corporation, and hereby certifies that, to the best of his knowledge,
information and belief, the matters and facts set forth therein with respect to
the authorization and approval thereof are true in all material respects under
the penalties of perjury.
/s/ H. Wayne Snavely
_______________________________________________
H. Wayne Snavely, President
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<PAGE>
EXHIBIT A
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[Attach copy of Merger Agreement.]
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<PAGE>
EXHIBIT B
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[Attach copy of IAC charter.]
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<PAGE>
ICCMIC ACQUISITION CORP.
ARTICLES OF INCORPORATION
The undersigned, being a natural person and acting as an incorporator, does
hereby adopt the following Articles of Incorporation for the purpose of forming
a business corporation in the State of Maryland, pursuant to the provisions of
the Maryland General Corporation Law. These Articles of Incorporation, as they
may be amended, supplemented or restated from time to time, are referred to as
the "Charter."
ARTICLE I
INCORPORATOR
The undersigned, Phil Hanson, whose address is c/o Mayer, Brown & Platt,
350 S. Grand Ave., Los Angeles, CA 90071, being at least 18 years of age, does
hereby form a corporation under the general laws of the State of Maryland.
ARTICLE II
NAME
The name of the corporation (the "Corporation") is:
ICCMIC Acquisition Corp.
ARTICLE III
PURPOSE
The purpose for which the Corporation is formed is to engage in any lawful
act or activity including, without limitation or obligation, engaging in
business as a real estate investment trust ("REIT") under Sections 856 through
860 of the Internal Revenue Code of 1986, as amended, or any successor statute
(the "Code") for which corporations may be organized under the general laws of
the State of Maryland as now or hereafter in force.
ARTICLE IV
PRINCIPAL OFFICE IN STATE AND RESIDENT AGENT
The address of the principal office of the Corporation in the State of
Maryland is c/o The Corporation Trust Incorporated, 300 East Lombard Street,
Baltimore, Maryland 21202. The name and address of the resident agent of the
Corporation in the State of Maryland is The Corporation Trust Incorporated, 300
East Lombard Street, Baltimore, Maryland 21202. The resident agent is a Maryland
corporation.
<PAGE>
ARTICLE V
PROVISIONS FOR DEFINING, LIMITING
AND REGULATING CERTAIN POWERS OF THE
CORPORATION AND OF THE STOCKHOLDERS AND DIRECTORS
Section 5.1 Number of Directors.
5.1.1 Number of Directors. The business and affairs of the
Corporation shall be managed under the direction of the Board of Directors. The
number of directors of the Corporation shall be two which number may be
increased or decreased pursuant to the Bylaws of the Corporation, and so long as
there are less than three (3) stockholders, the number of directors may be less
than three (3) but not less than the number of stockholders, and the names of
the directors who shall act until the first meeting or until their successors
are duly chosen and qualified are H. Wayne Snavely and Kevin E. Villani.
5.1.2 Election by Preferred Stockholders. Whenever the holders of
any one or more series of preferred stock of the Corporation shall have the
right, voting separately as a class, to elect one or more directors of the
Corporation, the Board of Directors shall consist of said directors so elected
in addition to the number of directors fixed as provided in paragraph 5.1.1 of
this Article V or in the Bylaws. Notwithstanding the foregoing, and except as
otherwise may be required by law, whenever the holders of any one or more series
of preferred stock of the Corporation shall have the right, voting separately as
a class, to elect one or more directors of the Corporation, the terms of the
director or directors elected by such holders shall expire at the next
succeeding annual meeting of stockholders.
Section 5.2 Extraordinary Actions. Notwithstanding any provision of law
requiring the authorization of any action by a greater proportion than a
majority of the total number of shares of all classes of capital stock or of the
total number of shares of any class of capital stock, such action shall be valid
and effective if authorized by an affirmative vote of the holders of a majority
of the total number of shares of all classes outstanding and entitled to vote
thereon, except as otherwise provided in this Charter.
Section 5.3 Authorization by Board of Stock Issuance. The Board of
Directors may authorize the issuance from time to time of shares of stock of the
Corporation of any class or series, whether now or hereafter authorized, or
securities or rights convertible into shares of its stock of any class or
series, whether now or hereafter authorized, for such consideration as the Board
of Directors may deem advisable (or without consideration in the case of a stock
split or stock dividend), subject to such restrictions or limitations, if any,
as may be set forth in this Charter or the Bylaws.
Section 5.4 Preemptive Rights. No holder of any stock or any other
securities of the Corporation, whether now or hereafter authorized, shall have
any preemptive right to subscribe for or purchase any stock or any other
securities of the Corporation other than such, if any, as the Board of
Directors, in its sole discretion, may determine and at such price or prices and
upon
<PAGE>
such other terms as the Board of Directors, in its sole discretion, may
fix; and any stock or other securities which the Board of Directors may
determine to offer for subscription may, as the Board of Directors in its sole
discretion shall determine, be offered to the holders of any class, series or
type of stock or other securities at the time outstanding to the exclusion of
the holders of any or all other classes, series or types of stock or other
securities at the time outstanding.
Section 5.5 Indemnification.
5.5.1 The Corporation shall indemnify and hold harmless and, without
requiring a determination of the ultimate entitlement to indemnification, pay
reasonable expenses in advance of the final disposition of any proceeding to (A)
its present and former directors and officers, whether serving the Corporation
or at its request any other entity, to the full extent required or permitted by
the General Laws of the State of Maryland now or hereafter in force, including
the advance of expenses under the procedures and to the full extent permitted by
law and (B) other employees and agents to such extent as shall be authorized by
the Board of Directors or the Corporation's Bylaws and be permitted by law. The
foregoing rights of indemnification shall not be exclusive of any other rights
to which those seeking indemnification may be entitled. The Board of Directors
may take such action as is necessary to carry out these indemnification
provisions and is expressly empowered to adopt, approve and amend from time to
time such bylaws, resolutions or contracts implementing such provisions or such
further indemnification arrangements as may be permitted by law.
5.5.2 Any indemnification, or payment of expenses in advance of the
final disposition of any proceeding, shall be made promptly, and in any event
within 60 days, upon the written request of the director or officer entitled to
seek indemnification (the "Indemnified Party"). The right to indemnification and
advances hereunder shall be enforceable by the Indemnified Party in any court of
competent jurisdiction, if (i) the Corporation denies such request, in whole or
in part, or (ii) no disposition thereof is made within 60 days. The Indemnified
Party's costs and expenses incurred in connection with successfully establishing
his or her right to indemnification, in whole or in part, in any such action
shall also be reimbursed by the Corporation. It shall be a defense to any action
for advance for expenses that (a) a determination has been made that the facts
then known to those making the determination would preclude indemnification or
(b) the Corporation has not received both (i) an undertaking as required by law
to repay such advances in the event it shall ultimately be determined that the
standard of conduct has not been met and (ii) a written affirmation by the
Indemnified Party of such Indemnified Party's good faith belief that the
standard of conduct necessary for indemnification by the Corporation has been
met.
5.5.3 No amendment of this Charter or repeal of any of its
provisions shall limit or eliminate the right to indemnification provided
hereunder with respect to acts or omissions occurring prior to such amendment or
repeal.
Section 5.6 Determinations by Board. The determination as to any of the
following matters, made in good faith by or pursuant to the direction of the
Board of Directors consistent
<PAGE>
with this Charter and in the absence of actual receipt of an improper benefit in
money, property or services or active and deliberate dishonesty established by a
court, shall be final and conclusive and shall be binding upon the Corporation
and every holder of shares of its stock: the amount of the net income of the
Corporation for any period and the amount of assets at any time legally
available for the payment of dividends, redemption of its stock or the payment
of other distributions on its stock; the amount of paid-in surplus, net assets,
other surplus, annual or other net profit, net assets in excess of capital,
undivided profits or excess of profits over losses on sales of assets; the
amount, purpose, time of creation, increase or decrease, alteration or
cancellation of any reserves or charges and the propriety thereof (whether or
not any obligation or liability for which such reserves or charges shall have
been created shall have been paid or discharged); the fair value, or any sale,
bid or asked price to be applied in determining the fair value, of any asset
owned or held by the Corporation; any matters relating to the acquisition,
holding and disposition of any assets by the Corporation; whether and to what
extent and at what times and places and under what conditions and regulations
the books, accounts and documents of the Corporation shall be open to the
inspection of stockholders, except as otherwise provided by statute or by the
Bylaws and, except as so provided, no stockholder shall have any right to
inspect any book, account or document of the Corporation unless authorized to do
so by resolution of the Board of Directors.
Section 5.7 REIT Qualification. The Corporation shall seek to elect and
maintain status as a REIT under the Code. The Board of Directors shall use its
reasonable best efforts to ensure that the Corporation satisfies the
requirements for qualification as a REIT under the Code, including, but not
limited to, the ownership of its outstanding stock, the nature of its assets,
the sources of its income, and the amount and timing of distributions to its
stockholders. The Board of Directors shall take no action to disqualify the
Corporation as a REIT or to otherwise revoke the Corporation's election to be
taxed as a REIT without the affirmative vote of not less than two-thirds of all
of the votes ordinarily entitled to be cast in the election of directors, voting
together as a single class.
Section 5.8 Removal of Directors. Any director, or the entire Board of
Directors, may be removed from office at any time, but only for cause and then
only by the affirmative vote of not less than two-thirds of all of the votes
ordinarily entitled to be cast in the election of directors, voting together as
a single class.
Section 5.9 Dissolution. The dissolution of the Corporation shall be
approved by the affirmative vote of not less than two-thirds of all of the votes
ordinarily entitled to be cast in the election of directors, voting together as
a single class.
Section 5.10 Amendment of Certain Provisions. Notwithstanding any other
provision of this Charter or the Bylaws of the Corporation, the provisions of
Sections 5.7, 5.8, 5.9 and 5.10 shall not be amended, altered, changed or
repealed without the affirmative vote of not less than two-thirds of all of the
votes ordinarily entitled to be cast in the election of directors, voting
together as a single class.
<PAGE>
ARTICLE VI
STOCK
Section 6.1 Authorized Shares. The total number of shares of stock of
all classes which the Corporation has authority to issue is 500,000,000 shares
of capital stock (par value $.0001 per share), amounting in aggregate par value
to $50,000. All of such shares are initially classified as "Common Stock". The
Board of Directors may classify and reclassify any unissued shares of capital
stock by setting or changing in any one or more respects the preferences,
conversion or other rights, voting powers, restrictions, limitations as to
dividends, qualifications or terms or conditions of redemption of such shares of
capital stock.
Section 6.2 Common Stock. Subject to Article VII, the following is a
description of the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption of the Common Stock of the Corporation:
6.2.1 Voting Rights. Each share of Common Stock shall have one vote,
and, except as otherwise provided in respect of any class of stock hereafter
classified or reclassified, the exclusive voting power for all purposes shall be
vested in the holders of the Common Stock. Shares of Common Stock shall not have
cumulative voting rights.
6.2.2 Dividends. Subject to the provisions of law and any
preferences of any class of stock hereafter classified or reclassified,
dividends, including dividends payable in shares of another class of the
Corporation's stock, may be paid ratably on the Common Stock at such time and in
such amounts as the Board of Directors may deem advisable.
6.2.3 Distribution Upon Dissolution. In the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, the holders of the Common Stock shall be entitled, together with
the holders of any other class of stock hereafter classified or reclassified not
having a preference on distributions in the liquidation, dissolution or winding
up of the Corporation, to share ratably in the net assets of the Corporation
remaining after payment or provision for payment of the debts and other
liabilities of the Corporation and the amount to which the holders of any class
of stock hereafter classified or reclassified having a preference on
distributions in the liquidation, dissolution or winding up of the Corporation
shall be entitled.
Section 6.3 Classification/Reclassification.
6.3.1 Powers of the Board of Directors. Subject to Article VII and
the foregoing, the power of the Board of Directors to classify and reclassify
any of the shares of capital stock shall include, without limitation, subject to
the provisions of this Charter, authority to classify or reclassify any unissued
shares of such stock into a class or classes of preferred stock, preference
stock, special stock or other stock, and to divide and classify shares of any
class into one or more series of such class, by determining, fixing, or altering
one or more of the following:
<PAGE>
(a) The distinctive designation of such class or series and the
number of shares to constitute such class or series; provided that, unless
otherwise prohibited by the terms of such or any other class or series, the
number of shares of any class or series may be decreased by the Board of
Directors in connection with any classification or reclassification of unissued
shares and the number of shares of such class or series may be increased by the
Board of Directors in connection with any such classification or
reclassification, and any shares of any class or series which have been
redeemed, purchased, otherwise acquired or converted into shares of Common Stock
or any other class or series shall become part of the authorized capital stock
and be subject to classification and reclassification as provided in this sub-
paragraph.
(b) Whether or not and, if so, the rates, amounts and times at which,
and the conditions under which, dividends shall be payable on shares of such
class or series, whether any such dividends shall rank senior or junior to or on
a parity with the dividends payable on any other class or series of stock, and
the status of any such dividends as cumulative, cumulative to a limited extent
or non-cumulative and as participating or non-participating.
(c) Whether or not shares of such class or series shall have voting
rights, in addition to any voting rights provided by law and, if so, the terms
of such voting rights.
(d) Whether or not shares of such class or series shall have
conversion or exchange privileges and, if so, the terms and conditions thereof,
including provision for adjustment of the conversion or exchange rate in such
events or at such times as the Board of Directors shall determine.
(e) Whether or not shares of such class or series shall be subject to
redemption and, if so, the terms and conditions of such redemption, including
the date or dates upon or after which they shall be redeemable and the amount
per share payable in case of redemption, which amount may vary under different
conditions and at different redemption dates; and whether or not there shall be
any sinking fund or purchase account in respect thereof, and if so, the terms
thereof.
(f) The rights of the holders of shares of such class or series upon
the liquidation, dissolution or winding up of the affairs of, or upon any
distribution of the assets of, the Corporation, which rights may vary depending
upon whether such liquidation, dissolution or winding up is voluntary or
involuntary and, if voluntary, may vary at different dates, and whether such
rights shall rank senior or junior to or on a parity with such rights of any
other class or series of stock.
(g) Whether or not there shall be any limitations applicable, while
shares of such class or series are outstanding, upon the payment of dividends or
making of distributions on, or the acquisition of, or the use of moneys for
purchase or redemption of, any stock of the Corporation, or upon any other
action of the Corporation, including action under this sub-paragraph, and, if
so, the terms and conditions thereof.
<PAGE>
(h) Any other preferences, rights, restrictions, including
restrictions on transferability, and qualifications of shares of such class or
series, not inconsistent with law and this Charter.
6.3.2 Ranking. For the purposes hereof and of any articles
supplementary to this Charter providing for the classification or
reclassification of any shares of capital stock or of any other Charter document
of the Corporation (unless otherwise provided in any such articles or document),
any class or series of stock of the Corporation shall be deemed to rank:
(a) prior to another class or series either as to dividends or upon
liquidation, if the holders of such class or series shall be entitled to the
receipt of dividends or of amounts distributable on liquidation, dissolution or
winding up, as the case may be, in preference or priority to holders of such
other class or series;
(b) on a parity with another class or series either as to dividends
or upon liquidation, whether or not the dividend rates, dividend payment dates
or redemption or liquidation price per share thereof be different from those of
such others, if the holders of such class or series of stock shall be entitled
to receipt of dividends or amounts distributable upon liquidation, dissolution
or winding up, as the case may be, in proportion to their respective dividend
rates or redemption or liquidation prices, without preference or priority over
the holders of such other class or series; and
(c) junior to another class or series either as to dividends or
upon liquidation, if the rights of the holders of such class or series shall be
subject or subordinate to the rights of the holders of such other class or
series in respect of the receipt of dividends or the amounts distributable upon
liquidation, dissolution or winding up, as the case may be.
Section 6.4 Charter and Bylaws. All persons who shall acquire stock in
the Corporation shall acquire the same subject to the provisions of this Charter
and the Bylaws of the Corporation.
ARTICLE VII
AMENDMENTS
The Corporation reserves the right from time to time to make any amendments
of this Charter which may now or hereafter be authorized by law, including any
amendments changing the terms or contract rights, as expressly set forth in this
Charter, of any of its outstanding stock by classification, reclassification or
otherwise but, no such amendment which changes such terms or contract rights of
any of its outstanding stock shall be valid unless such amendment shall have
been authorized by not less than a majority of the aggregate number of the votes
entitled to be cast thereon.
<PAGE>
ARTICLE VIII
LIMITATION OF LIABILITY
To the fullest extent permitted by Maryland statutory or decisional law, as
amended or interpreted, no director or officer of the Corporation shall be
personally liable to the Corporation or its stockholders for money damages. No
amendment of this Charter or repeal of any of its provisions shall limit or
eliminate the limitation on liability provided to directors and officers
hereunder with respect to any act or omission occurring prior to such amendment
or repeal.
IN WITNESS WHEREOF, I have signed these Articles of Incorporation and
acknowledge the same to be my act.
INCORPORATOR:
/s/ Phil Hanson
- ----------------------------
I hereby consent to my designation in this document as resident agent for
this corporation.
SIGNATURE OF RESIDENT AGENT LISTED IN FOURTH:
- ----------------------------
<PAGE>
__________________
ARTICLES SUPPLEMENTARY
ICCMIC Acquisition Corp., a Maryland corporation (the "Company")
having its principal office in the State of Maryland in Baltimore City, hereby
certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: Under a power contained in Article VI of the Articles of
-----
Incorporation of the Company (the "Charter"), the Board of Directors of the
Company (the "Board of Directors"), by unanimous written consent, dated as of
March 20, 2000, reclassified and designated 100 shares of Common Stock (the
"Stock") (as defined in the Charter) as shares of Series A Nonvoting Preferred
Stock, par value $.0001 per share, with the following preferences, other rights,
voting powers, restrictions, limitations as to dividends and other
distributions, which, upon any restatement of the Charter, shall be deemed to be
part of Article VI of the Charter:
SERIES A NONVOTING PREFERRED STOCK
Section 1. Number and Designation. This Class of Preferred
----------------------
Stock shall be designated as Series A Nonvoting Preferred Stock, par
value $.0001 per share (the "Series A Nonvoting Preferred Stock"), and
the number of shares which shall constitute the Series A Nonvoting
Preferred Stock shall not be more than 100 shares, subject, however,
to increase or decrease upon further action by the Board of Directors
in the future as permitted by the Charter and applicable law.
Section 2. Definitions. For purposes of the Series A
-----------
Nonvoting Preferred Stock, the following terms shall have the meanings
indicated:
"Board of Directors" shall mean the Board of Directors of the Company
------------------
or any committee authorized by such Board of Directors to perform any of its
responsibilities with respect to the Series A Nonvoting Preferred Stock.
"Common Stock" shall mean the Common Stock, par value $.0001 per
------------
share, of the Company.
"Dividend Payment Date" shall have the meaning set forth in Section
---------------------
3(a) hereof.
"Dividend Record Date" shall have the meaning set forth in Section
--------------------
3(a) hereof.
"Junior Stock" shall mean all classes or series of Stock of the
------------
Company ranking junior to the Series A Nonvoting Preferred Stock.
"MGCL" shall mean the Maryland General Corporation Law, as amended
----
from time to time.
<PAGE>
"Series A Nonvoting Preferred Stock" shall have the meaning set forth
----------------------------------
in Section 1 hereof.
Section 3. Dividends.
---------
(a) The holders of Series A Nonvoting Preferred Stock shall
be entitled to receive, when, as and if authorized by the
Board of Directors out of assets legally available for that
purpose, dividends in the amount of eight dollars ($8.00)
per share annually on such date as may be set by the Board
of Directors (a "Dividend Payment Date") to holders of
record on such date, not more than 60 nor less than ten days
preceding such Dividend Payment Date, fixed for such purpose
by the Board of Directors (a "Dividend Record Date"). Each
such dividend shall be payable to the holders of record of
the Series A Nonvoting Preferred Stock as they appear on the
share records of the Company at the close of business on the
Dividend Record Date.
(b) Dividends on Series A Nonvoting Preferred Stock shall
not be cumulative, and no right shall accrue to the holders
of the Series A Nonvoting Preferred Stock by reason of the
fact that distributions on said shares are not declared in
any prior year, nor shall any undeclared or unpaid
distribution bear or accrue interest.
Section 4. Liquidation Preference.
----------------------
(a) In the event of any liquidation, dissolution or winding
up of the affairs of the Company, whether voluntary or
involuntary, before any assets of the Company shall be
distributed, paid or set aside for the holders of Junior
Stock, the Company shall pay to the holders of shares of
Series A Nonvoting Preferred Stock one hundred dollars
($100) per share of Series A Nonvoting Preferred Stock plus
an amount equal to all declared and unpaid dividends to the
date of final distribution to such holders; but such holders
shall not be entitled to any further payment. Until the
holders of the Series A Nonvoting Preferred Stock have been
paid this liquidation preference in full, no payment will be
made to any holder of Junior Stock upon the liquidation,
dissolution or winding up of the Company. For the purposes
of this Section 4, (i) a consolidation or merger of the
Company with one or more entities, (ii) a sale or transfer
of all or substantially all of the Company's assets, or
(iii) a statutory share exchange shall not be deemed to be a
liquidation, dissolution or winding up, voluntary or
involuntary, of the Company.
(b) Upon any liquidation, dissolution or winding up of the
Company, after payment shall have been made in full to the
holders of Series A Nonvoting Preferred Stock as provided in
this Section 4, any other series or class or classes of
Junior Stock shall, subject to the respective terms thereof,
be entitled to receive any and all assets remaining to be
paid or distributed,
2
<PAGE>
and the holders of the Series A Nonvoting Preferred Stock
shall not be entitled to share therein.
(c) In determining whether a distribution (other than upon
voluntary or involuntary liquidation), by dividend or other
acquisition of shares of beneficial interest of the Company
or otherwise, is permitted under the MGCL, amounts that
would be needed, if the Company were to be dissolved at the
time of the distribution, to satisfy the preferential rights
upon dissolution of holders of shares of Series A Nonvoting
Preferred Stock shall not be added to the Company's total
liabilities.
Section 5. Status of Stock. All shares of Series A Nonvoting
---------------
Preferred Stock which shall have been issued and
reacquired in any manner by the Company shall be
restored to the status of authorized but unissued Series
A Nonvoting Preferred Stock.
Section 6. Ranking. So long as any shares of Series A
-------
Nonvoting Preferred Stock are outstanding, the Company
shall not issue any class or series of Stock which would
entitle the holders thereof to the receipt of dividends
or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in
preference or priority to the holders of Series A
Nonvoting Preferred Stock. All other classes or series
of Stock of the Company shall rank on parity or junior
to the Series A Nonvoting Preferred Stock, as to the
payment of dividends and as to the distribution of
assets upon liquidation, dissolution or winding up.
Section 7. Voting Rights. The holders of the Series A
-------------
Nonvoting Preferred Stock shall not have the right to
notice of shareholders' meetings or to vote; provided,
however, that so long as any shares of the Series A
Nonvoting Preferred Stock shall be outstanding, the
Company shall not, without first obtaining the approval,
by vote or written consent, of the holders of at least a
majority of the Series A Nonvoting Preferred Stock,
alter or change the preferences, other rights, voting
powers, restrictions or limitations of the shares of the
Series A Nonvoting Preferred Stock so as to materially
adversely affect such preferences, other rights, voting
powers, restrictions or limitations of the shares,
except to protect the REIT status of the Company.
Section 8. Severability of Provisions. If any preference,
--------------------------
right, voting power, restriction, limitation as to
dividends or other distributions of the Series A
Nonvoting Preferred Stock set forth herein is invalid,
unlawful or incapable of being enforced by reason of any
rule of law or public policy, all other preferences,
rights, voting powers,
3
<PAGE>
restrictions, limitations as to dividends or other
distributions of the Series A Nonvoting Preferred Stock
set forth herein which can be given effect without the
invalid, unlawful or unenforceable provision thereof
shall, nevertheless, remain in full force and effect,
and no preferences, rights, voting powers, restrictions,
limitations as to dividends or other distributions of
the Series A Nonvoting Preferred Stock herein set forth
shall be deemed dependent upon any other provision
thereof unless so expressed therein.
SECOND: The Stock has been classified and designated by the Board of
------
Directors under the authority contained in the Charter.
THIRD: These Articles Supplementary have been approved by the Board
-----
of Directors in the manner and by the vote required by law.
FOURTH: The undersigned President of the Company acknowledges these
------
Articles Supplementary to be the act of the Company and, as to all matters or
facts required to be verified under oath, the undersigned President acknowledges
that to the best of his knowledge, information and belief, these matters and
facts are true in all material respects and that this statement is made under
the penalties for perjury.
4
<PAGE>
IN WITNESS WHEREOF, the Company has caused these Articles
Supplementary to be executed by its President and attested to by its Secretary
on this 21st day of March, 2000.
By: /s/ H. Wayne Snavely
------------------------
H. Wayne Snavely
Attest: /s/ Irwin L. Gubman
-------------------------
Irwin L. Gubman
<PAGE>
EXHIBIT 99.(d)
For Immediate Release
Imperial Credit Commercial Mortgage Investment Corp. and
Imperial Credit Industries, Inc. Complete $303 Million Merger
LOS ANGELES, CALIFORNIA, March 28, 2000. Imperial Credit Commercial
Mortgage Investment Corp. (Nasdaq: "ICMI") and a subsidiary of Imperial Credit
Industries, Inc. (Nasdaq: "ICII") completed their $303 million merger today.
As a result of the merger, Imperial Credit Industries, Inc. effectively
acquired all of the issued and outstanding shares of ICMI's common stock (other
than the 2,570,000 shares already owned by ICII) for a cash purchase price of
$11.5753246 per share. In addition, as previously announced, ICMI will pay a
final dividend of $0.23 per share on April 14, 2000 to its stockholders of
record as of March 27, 2000.
Mark S. Karlan, President and Chief Executive Officer of ICMI from the time
of its initial public offering until the closing of the merger, stated "We are
extremely pleased to have successfully completed our all-cash merger with ICII.
Our stockholders overwhelmingly approved the merger at a special meeting on
March 20, 2000, and will receive more than $11.80 in cash from the merger
consideration and the final dividend. ICMI has been the best performing
mortgage REIT in terms of stock price performance since the date of our initial
public offering in October 1997." Prior to completion of the merger, ICMI was a
publicly traded real estate investment trust that invested primarily in
multifamily and commercial mortgage loans, real property and commercial
mortgage-backed securities.
H. Wayne Snavely, Chairman, President and Chief Executive Officer of ICII,
stated "We are pleased to have completed the merger and believe that it will add
significant value to Imperial Credit Industries." Imperial Credit Industries,
Inc., a financial services holding company, was formed in 1991 and is
headquartered in Torrance, California. The Company's major business activities
are conducted through four wholly owned subsidiaries: Southern Pacific Bank,
Imperial Business Credit, Inc., Imperial Credit Asset Management, Inc., and
Imperial Credit Lender Services, Inc. The Company's majority owned subsidiary
is Imperial Capital Group, LLC (approximately 60% ownership). Imperial Credit
Industries, Inc. and its subsidiaries and affiliates offer a wide variety of
commercial banking and financial services, investment products and asset
management services.
Certain statements contained herein are "forward-looking statements" within
the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A
of the Securities Act of 1933, as amended, and Section 21E of the Securities Act
of 1934, as amended. These forward-looking statements may be identified by
reference to a future period(s) or by the use of forward-looking terminology,
such as "may," "will," "intend," "should," "expect," "anticipate," "estimate" or
"continue" or the negatives thereof or other comparable terminology. Actual
results could differ materially from those anticipated in such forward-looking
statements due to a variety of factors, including, but not limited to, changes
in national, regional or local economic environments, competitive products and
pricing, government fiscal and monetary policies and other factors generally
understood to affect the real estate acquisition, mortgage and leasing markets
and security investments.
For further information, please contact Karen Montandon at (310) 791-8022.
